United States v. Callender

—My construction of the law is quite the contrary. I have always seen triers sworn to decide these questions. How is this done in your country? Challenges for favour must be decided by triers. I suppose there must be triers sworn.

Mr. Nicholas.—I believe the books lay down this distinction. Challenges to the array are either principal challenges, or challenges for favour;—causes for principal challenges are always tried by the court; challenges for fa-vour are always tried by triers.

CHASE, Circuit Justice.—Well, sir, your challenge is for favour, because you state the juror to be unfavourable to the traverser.

.Mr. Nicholas.—This book states it as a cause of principal challenge.

CHASE, Circuit Justice.—Show me that book: it is not the best authority. Have you Coke upon Littleton in the house? If I had it we would see the whole doctrine at once. I am.persuaded that Coke upon Littleton states, that challenges for favour must be decided by triers. The oatlf of the triers is laid down there. Challenges to the array are for partiality in the sheriff.

Coke upon Littleton being produced, and the judge having examined it, observed, the case is dear. Principal challenges to the array, or the whole jury at once, are always for partiality in the sheriff, and not in the jurors.

Mr. Nicholas said, that the law might perhaps consider the return of a partial juror, as sufficient to ground a challenge to the array, on the principle of partiality in the sheriff, and wished to know if he was correct in this idea of the law.

CHASE, Circuit Justice.—No sir, the law is not so. You must proceed regularly. You may bring in proof if you can, that any juror has delivered his opinion upon that case heretofore; or you may examine the juror himself, upon oath, to this effect. You may do either, but not both; and this alternative offered, you must consider not as a strict right.

The counsel chose to rely on the jurors themselves.

The first juror was sworn, and the judge put the following question to him: “Have you ever formed and delivered an opinion upon the charges contained in the indictment?” The juror answered, that he had never seen the indictment, nor heard it read. The judge then said, he must be sworn in chief.

Mr. Hay asked permission to put a question to the juror before he was sworn in chief. The judge desired to know what sort of a question he meant to put, and told him he must first hear the question, and if he thought it a proper one, it might be put.

Mr. Hay.—The question which, with the permission of the court, I meant to have asked, is this: "Have you ever formed and delivered an opinion on the book entitled. ‘The Prospect Before Us,- from which the charges in the indictment are extracted?”

CHASE, Circuit Justice.—That question is. improper, and you shall not ask it. The only proper question is, “Have you ever formed and delivered an opinion upon this charge." He must have delivered as well as formed the opinion. Such a question as you propose, would prevent the man from ever being tried —the whole country have heard the case, and very probably, formed an opinion. You might mislead men by your ingenuity, and if you were indulged in putting the question, the traverser might never be tried. He has answered, that he never saw the indictment, nor heard it read, and if he has neither read nor heard the charges, I am sure he cannot have formed or delivered an opinion on the subject.

Mr. Hay then asked, that the indictment might be read to the juror, because, perhaps. *245when he heard and understood the charges, he would answer, that he had both formed and delivered an opinion upon them.

The judge replied, that the court had already indulged him as far as they could. That the answer of the juryman was explicit —that they could not go further than they had gone, and that he ought to be satisfied.

The juryman was then sworn in chief, and the issue was explained, that it must be proved that the traverser wrote or published the book—that the charges were false, scandalous and malicious, and that he wrote them with intent to defame, and that if he could prove the charges he must be acquitted. The same question, “whether they had formed and delivered an opinion on the charges against the traverser,” was put by the judge, to eight of the other jurymen successively, before they were sworn in chief, and they all answered in the negative.

The counsel for the traverser said, that it was unnecessary to put this question to the other three jurymen, and they were accordingly sworn in chief immediately. The eighth juror answered, when the previous question was put to him, that though he had never read or heard the charges in the indictment, and knew not what the traverser had published, yet he had formed an unequivocal opinion, that such a book as “The Prospect Before Us,” came within the sedition law. But no objection was made to him, and he was sworn like the rest.

The indictment was then read by the clerk.

Mr. Nelson, the district attorney, then said: I shall not attempt, gentlemen of the jury, to excite your passions or inflame your feelings. I shall endeavour to be cautious, and avoid uttering what ought not to be said, which may in any manner influence your judgment, upon your oath; for in that office which I hold, which is that of the people of United America, it is more than a common duty, to take care not to step beyond that line which leads to justice. To that state in which your passions shall be; to such feelings as you shall possess, after hearing the charge contained in the indictment, the evidence in support of it, and a fair statement and representation of the case, X shall leave and entrust the case. In the present state of the business, it will be proper for me to call your attention to the statute or act of congress, which relates" to this case.

Here Mr. Nelson read the second and third sections of the sedition law. [Lyon’s Case, Case No. 8,646, and note.]

Upon this statute James Thompson Callen-der is now indicted, and the indictment charges that, maliciously designing and intending to defame the president, he, James Thompson Callender, did publish the libel set forth therein, with intent to bring him into contempt and disrepute, and to excite the hatred of the good people of the United States towards him. It will be for you, gentlemen of the jury, in this case to determine whether the traverser has, or has not, been the publisher of this paper. This point being ascertained, it will be for you to consider with what view, and for what purpose, a paper like this has been composed and published. If you believe it to be a candid and fair discussion of constitutional subjects, of real grievances, or of political opinions and principles generally, you will not consider -it to be a libel within the statute. If you believe the facts and allegations averred in the paper are true, you will consider that the trav-erser hath defended himself according to the statute; but if, from internal evidence in the paper itself, you do not think so, you do not believe it to be a candid evidence and fair discussion of constitutional subjects, real grievances, or political opinions and principles, and that it does not contain the truth in all- parts, you must find the traverser guilty. You will take the paper into your room with you, and consider it coolly and dispassionately, free, and discharged from all that you may have heard abroad respecting it, and determine in your minds whether it be possible to give it any other construction than that which the indictment has ascribed to it. To me it seems impossible that the extremest ingenuity can show that it was written for any other purpose. However, gentlemen of the jury, to you I submit the calm examination of the paper, upon the paper itself, and this business as to the libel which, or such parts of which, as are charged in the indictment, I shall lay before you, after it shall be proven by witnesses, who will be produced to show that .Tames Thompson Callender, the traver-ser, did publish this paper; and, in laying it before you, I will make such observations as may seem to me proper and necessary to be made.

Mr. Hay understood that some of the witnesses who are to be examined to prove the guilt of the accused, were themselves, in the estimation of the law, equally guilty; that they have printed, though they had not written the libel in question. He would, therefore, beg leave to make it known to those who were in any degree implicated, that they are not bound to accuse themselves, and may withhold, if they think proper, such part of their evidence as has a tendency to crimi-nate themselves.

CHASE, Circuit Justice.—This is correct. Every person concerned in the publication is protected by law from compulsion to crimi-nate himself; but, I suppose, if any of them give his evidence, the government of the United States is pledged not to institute a prosecution against him. Ot this he may be assured.

Mr. Nelson then called Wm. Duval, who said that he saw Mr. Henry Banks have the book called “The Prospect Before Us”; that Mr. Banks gave him1 the book to read; that the next day he saw Mr. Callender, who told him that he must pay him a dollar for the book given him by Mr." Banks; that he did *246then pay the dollar for it to Mr. Callender; and that the book, he believes, contained some of the charges in the indictment.

Mr. Banks was then called.—He declared that, some time ago, he had become a subscriber to the book entitled “The Prospect Before Us," and paid the money at the time of subscription; that he lent the book to Major Duval, and sent to inform Mr. Callender, that he might get the money for it of Major Duval, and that he could get another copy himself another time; that he got from Mr. Callender the copy he delivered to Major Du-val; that he never heard the traverser acknowledge that he was the author, but that his opinion upon the. subject was clear.—The judge told him that his opinion was no evidence against the traverser.

' Wm. Burton was next called.—He said that he purchased such a book from Mr. Pleasants (who is a bookseller as well as a printer); that he paid the money to Mr. Pleasants, and Mr. Callender was present.

Wm. A. Bind was- next called.—His testimony substantially was, that a copy of the book in question, then in court, belonged to him; that, a considerable time ago, Mr. Lyon applied to them to print the National Magazine; that they entered into contract for the purpose of printing twenty-two sheets of that, or an equivalent in other work; that, after a great part of the magazine had been printed, it stopped, either for the want of paper or some other cause; that Mr. Lyon then brought' “The Prospect Before Us”; that they printed four or five half-sheets of it; that the proof-sheets were sent to Mr. Callender for correction, and returned corrected in his handwriting; that Mr. Callen-der once corrected a proof-sheet in. a large room at the office; that Mr. Callender came once to hurry the work, and said he would pay, but that he considered Mr. Lyon as paymaster; that, at Mr. Dixon’s office, Mr. Cal-lender said he would give him twenty copies if he would read one through, as he was sure it would convert him; that a small part of the manuscript remained in his possession, which he produced, then in court, and which he believed to be the handwriting of Mr. Cal-lender. Being asked if he had ever seen Mr. Callender write, he said he had; that Mr. Callender once took the debates in the house of assembly for them.

The book and manuscript sheets were then compared, and found to correspond; this occupied some time, and the judge took some pains in examining and comparing them.

Meriwether Jones said, that he had never read the book till after the presentment was made, except a few passages, and perhaps about thirty-three pages; that not a word of it was printed at his office, though he sold some of the copies for the benefit of Mr. Cal-lender; that he only possessed one copy (which he then showed), and which he declared he found where Mr. Callender generally kept his papers; that whenever he sold any of the books, Mr. Callender received the money; that he kept a memorandum of the money he received that he might know how much he owed him; that he could not positively say whether Mr. Callender was the author of the book or not; that he had never told him he was, though he had his opinion and belief on the subject; that he had published pro-posáis to print the book, and, afterwards, that he had them for sale, but he did not recollect whether he published that he had them for sale for the benefit of Mr. Callender, though ■’he fact was so; that the strongest proof he had of Mr. Callender being the author, was a conversation that he had with him respecting that part of the book where, speaking of Washington and Adams, it used the term poltroons; Mr. Callender said he alluded to some who had received appointments from them, and not to themselves.

Thos. Nicholson said, that Mr. Callender had called at his house to engage him to publish a part of the book; that he could not do it then; that he called on him the next day, accompanied by Mr. Meriwether Jones, for whom he was then engaged to print; that Mr. Jones told him that he might suspend his work, which he was then engaged in, to do Mr. Callender’s; that he printed seven pages of the book, that Mr. Callender paid him for it. and he understood it was for his emolument.

John Dixon said, that he printed the greatest part of the book (about 120 pages) at the . request of Mr. Lyon, and that Mr. Callender corrected the proof-sheet.

Jas. Lyon’s evidence was, that he did not know that Mr. Callender was the author of the book, but that he knew him to be the publisher of it, jointly with himself; and that he probably (but he did not recollect certainly) had furnished Mr. Bind with the copy of the book; that Mr. Callender corrected the sheets from the press; that he never saw Mr. Callender writing, but supposed, from having seen the manuscript, and some writing which was (said to be) written by him, that he wrote it.

Samuel Pleasants deposed, that he had sold copies of this book; he understood that the books were sent to him from the book-binder, for Mr. Callender; that he received both the money and the subscription papers for him, and paid him the money he received; that he sold, perhaps, a hundred copies.

The oral testimony of the United States being finished, the attorney for the United States was about to point to the jury the passages in “The Prospect Before Us” corresponding with the.charges in the indictment, when Mr. Hay objected to the introduction of that book.

I conceive, he said, that this book cannot be adduced in evidence, in support of the charges stated in the indictment. Perhaps my stating to the court the reasons which have led me to this conclusion, may subject me to the imputation which has- more than *247once fallen, from the bench. It has been the pleasure of the court to observe, that the de-fence had been conceived and continued in error. What I am about to say will not, perhaps, induce the court to change that opinion. It is with great diffidence I address the court on a subject which I have not had sufficient ’ leisure to investigate. If, unfortunately, my conception of this law be mistaken, I hope I shall be excpsed, and that the reprimand will not be severe, when it is recollected that I have had not sufficient time for a full examination of the case. The position for which I contend is, that the book entitled “The Prospect Before Us” cannot be given in evidence in support of the indictment. The title of the book is not mentioned in the indictment. It states, that “on the first day of February, one thousand eight hundred, the traverser did write, print, utter, and publish, a false, scandalous, and malicious writing against the president of the United States, of the tenor and effect following: ‘The reign of Mr. Adams,’ &c.” In prosecutions for libels in the English courts, great strictness is observed; the difference of a single letter between the words of the indictment and those in the written or printed paper adduced in evidence, is fatal; and when “tenor and effect” are inserted, all the authorities concur in declaring, that they impose on the prosecutor the necessity of proving the very words in the indictment The first charge in the indictment is for a libellous writing of the following tenor: ■ “The reign of Mr. Adams has been one continued reign of malignant passions.” The book which is introduced in support of this charge begins differently, and contains a hundred other pages, and many pages besides, and is not named in the indictment. The position for which I therefore mean to contend is. that when libel-lous passages are extracted from a book which has a name by which it can be described, it is the duty of the prosecutor to describe the book by that name; for instance, he ought, in this case, to have stated, that the party accused had published a false, scandalous, and malicious writing, entitled “The Prospect Before Us,” containing, among other things, the passages complained of. There are two strong reasons to support this doctrine. The first ground on which I rest the validity of this observation is, that the practice has been invariably so. I have taken the trouble of examining fifteen or twenty cases, in all of which the books from which libellous passages were taken, had a name or title, and the prosecutor described every one of them by the name which the author had chosen to give it. From these I will select three cases, to show that the description of the libellous writing by the title given it by the author, has been deemed essentially necessary, the first of which was remarkable tor the length of the title; the second, where the paper contained the libel, had a number as well as a title, and both the number and the title were recited. (Here Mr. Hay showed from a book concerning libels, that the title in those two cases, and the number in the latter of them were recited.) And the third, where the libel was published in the French language, in which case the title, though lengthy, was recited in that language, and then in English. In page 87 of the same book there is a history given of a prosecution by information against the Chevalier de On, for publishing a libel against the Count de Guerchy, ambassador from France. The prosecution was commenced in the court of king’s bench. The information states the title, the name of the libel fully and literally, as it was published in French, and then states the translation in English at full length: I bring forward these cases to prove what the practice is; and it is an observation of one of the best judges that ever sat in the king’s bench. Lord • Holt, that “the form of pleading is evidence of what the law is.” If, then, it be the practice to recite in the indictment the name, to describe the title of the book, or libel published; if this has been the invariable practice ever since the unhappy prosecutions for libels took place in that country—I believe there is no doubt but the title of this book ought to have been stated in the indictment. I have learned to think with diffidence, but I am firmly persuaded that the attorney for the United States cannot give a single case from the English books of a contrary practice: and with respect to prosecutions in the United States, I know not what the practice may be in the few instances that may have occurred.. It appears, too, that substantial reasons, founded on principles of sound law, and sound justice, can be adduced in support of this practice. A principle on which I rely to explain this practice to be correct, is, that it is a universal rule of law, that if a man’s words, spoken or written, be made the foundation of a charge against him, the whole should be taken together. If the whole writing charged to be libellous, be stated in the indictment, it will be in the power of the defendant to resort to other passages of the same book to explain it.—If the defendant were indicted for publishing “The Prospect Before Us,” he could resort to other parts of the book for an explanation. It was the duty of the attorney for the United States to have done so; as he has omitted it, he ought to be precluded from producing it in evidence.—I will now state the other reason, in support of my objection to the admissibility of this book as evidence: It is founded on this principle which hath always prevailed, or was supposed to prevail in criminal law, that in all criminal cases, the offence should be described with all possible accuracy and precision. In felony, it is necessary to insert in the indictment the goods and chattels alleged to be stolen, as well as the name of the person to whom they belong. The reasons are furnished by the books, why this preci*248sion is deemed necessary; the first, that the defendant may know the charge against him, and be able to defend himself; the other, that he may plead the conviction or acquittal In bar of a subsequent prosecution for the same offence. Here he referred to Hawkins’ Pleas of the Crown (page 322) as authority. The defendant is charged with writing and publishing a libel of “the following tenor and effect”: and but very few passages are selected from the book, which bear but a very little proportion to the extent of the whole of it. I ask, how is the defendant to know whether these few passages were taken from “The Prospect Before Us,” or from some newspaper, in which they have been republished by some person, for whose conduct he was not responsible? Unless the charge be accurately specified, it is impossible for him to defend himself. In support of this indictment, evidence as to either case might be brought forward.—If in the indictment he had been charged with publishing a book, entitled “The Prospect Before Us,” he ; would have known with an absolute certain- [ ty and demonstration, (by the copy with • which he had been furnished,) what was.! meant to be proved against him, and what i was necessary for him to prove in his own j vindication: as this is not the case, and as ¡ he was not bound to know whether the pas- I sages were taken from the book or a news- ' paper, containing extracts from it, in the ■ publication of which he had no concern, and for which he is under no responsibility, he j ought to be sheltered by law from this evi- ¡ dence, which is attempted to be introduced ! against him. The second reason has made a ' great impression on my mind, and yet retains its influence. I conceive, that one writing , against the president, containing fifty libel- ■ lous passages, if published at the same time, can be but one act, and if there be but one : act, there can be but one prosecution; if the present indictment' had mentioned the title : of the book, and the very passages relied on I as parts of this book, the decision of this ' jury and this court which is about to be j pronounced in this case, might be pleaded in ; bar to any subsequent indictment, for the same or any other passages in the same book. It is no argument to say, that there will be ' no subsequent prosecution; in times like j these, it is impossible to predict what may be i attempted, and if such a prosecution were to ! take place, I should- not be more surprised i than I am at present. If the title of the book : had been inserted in this indictment, and a ! subsequent indictment were to be brought ■ forward, I know that the defendant would '■ plead in bar, that he had been formerly convicted or formerly acquitted; and the pro- ' duction of the record alone would protect him; but if the title of the book is not to be recited, the record will not be conclusive, and a second prosecution may take place: for ¡ the second indictment, compared with the i present record, will contain no internal evi- j dence, that the traverser had been formerly tried for the same offence, but he must resort to oral testimony, to prove that this book had been given in evidence against him at a former trial; and he might not be able to procure witnesses, whose testimony would be sufficient to establish this point. These are the reasons which induce me to think that this book ought not to be admitted to go in evidence to support the charges in the indictment. > This principle has a considerable operation in questions of private property. In an action of debt, if a bond or writing be the ground of the action; if there be the most minute variance between the bond or writing stated in the declaration, and that which is adduced in evidence in support of it, the party must suffer a non-suit. If this precision and minute attention to accuracy be required in actions of property between man and man, is it not infinitely more important that the same principles should govern in criminal cases? If the argument be good in one case, it appears to be irresistible and omnipotent in the other.

Here CHASE, Circuit Justice, requested Air. Hay to point out these parts of the authorities referred'to, on which he relied to establish his doctrine.

Mr. Hay.—If the court will have a little patience I will find the places.

CHASE, Circuit Justice.—I will have a great deal.

Air. Hay.—The authorities I rely on are, Hawkins’ Pleas of the Crown (page 322), and Salkeld’s Reports (page 660). In this last book it is adjudged that when an indictment uses the words “secundum tenorem et effect-urn,” it binds the prosecutor to a literal recital; and any the least variance between the charge in the indictment and evidence offered to support it is fatal. The case I here refer to was an information for a libel: “In which libel were contained divers libel-lous matters secundum tenorem et effectum, and in setting forth a sentence of the libel, it was recited with the word ‘nor' instead of the word- ‘not,’ but the sense was not altered thereby. The defendant pleaded not guilty, and this appearing upon evidence, a special verdict was found, and the court held that the word ‘tenor,’ imports, a ‘true copy,’ and that the variance was fatal; for ‘not’ and ‘nor’ are different; different grammar, and different in sense; and Powys’ Justice held as to the point where literal omissions. &c. would be fatal: that where a letter omitted or changed makes another word, it is a fatal variance; otherwise where the word continues the same; and in the principal case no man would swear this to be a literal copy.” It appears from well established authorities that the words “in manner and form following,” do not bind the prosecutor to recite exactly, but the word “tenor” hath so strict a technical meaning, that it binds him to a literal copy. These principles certainly apply to the case before the court. The words *249“tenor and effect following” are stated, and the evidence is variant.

Here. CHASE, Circuit Justice, interrupted 31 r. Hay, and spoke to this effect: You are certainly mistaken in your statement of the law, as applied to the case now before the court. In the cases you mention there is really a variance- between the indictment and the evidence. Your objection is. that there is a variance between the thing charged in the indictment and the writing offered in evidence. But this case is very different; there is no variance. To ascertain this point I will state the indictment, and compare it with the law on which the prosecution is founded. The indictment charges, that the traverses, “maliciously intending to defame the president of the United States, and to bring him into contempt and disrepute, and to excite the hatred of the good people of the United States against him, did wickedly and maliciously write, print, utter and publish, a false, scandalous • and malicious writing, against the president of the United States, of the tenor and effect following, that is to say: ‘The reign of Mr. Adams has hitherto been one continued, tempest, &e.’ Now what is the law?. The act of congress provides among other things that, ‘if any person shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, any false, scandalous and malicious writing or writings, against the government, or either house of the congress, or the president of the United States, with intent to defame the said government, or either house of congress, or the said president, or to bring them, or either or any of them, into contempt or disrepute, or to excite against them the hatred of the good people of the United States, &c.’ ” The indictment charges the defendant with publishing a false, scandalous and malicious writing against the president, and the law provides against the publication of false, scandalous and malicious writings against the president.—The offences stated in the indictment correspond with those expressed in the law; the question then is, whether the name of the book in which such false, scandalous and malicious writings are published, must be recited in an indictment against an offender? It brings it to this point—Is it necessary that the title of the publication should be examined before it can be ascertained that it comes within the law? Any false, scandalous and malicious writing published with intent to defame, is provided against by law, whatever may be its title or name, or whether it have any name or not. I know that eases can be produced where the title of the libel is recited in the indictment. I remember one ease where a man was indicted for publishing a libel called “The Nun in her Smock;” but it was not necessary to mention the title of the libel in that case, nor is it essential in any. Why is it necessary that every charge against a defendant should be explicit? It is that he may clearly comprehend it, and be prepared to make his defence: it is not necessary for this purpose to recite the name of the libel. The charge against the traverser is very explicit, and he well understands and is prepared to defend it;' but it is no censure on his counsel that they urge this argument in his favour. You argue further, on a supposition, that if a subsequent prosecution were to be instituted for the same offence, the verdict and judgment now to be rendered could not be pleaded in bar. It requires very little legal ability to demonstrate that the title need not be recited; and it is equally eásy to prove that the decision in this case may be pleaded in bar of any other prosecution for the same offence. The attorney for the United States must prove that the traverser did publish a false, scandalous and malicious writing, with intent to defame the president. This can be done without reciting the title; and if he supports by the evidence any entire charge—if he proves that the traverser did publish any false, scandalous and malicious writing, it will be sufficient to support the indictment as to that charge, but he must be acquitted of the other charges: and the charges of which he may be found guilty, can be easily compared to charges in any subsequent indictment. This is quite different from the cases where there is an actual variance between the paper charged, and the paper offered in evidence. I understand that difference to be, that where the prosecutor undertakes to say that certain precise words have been published, he must establish them; but when he states words of the tenor and effect following, he will only be obliged to prove the substance; 2 but you insist that the whole original, including the title, must be copied in the indictment verbatim et litera-tim. I wonder you did not add et punetua-tim also. There is no real variance, and there is an end of the objection. You are mistaken.—I pronounce this to be the law, and I shall instruct the jury, that they may find the traverser guilty of part of the charges, and acquit him of such as are not proved.

CHASE, Circuit Justice, then informed ' the attorney for the United 'States, who was about to rise.to prove the admissibility of the book as evidence, that it was unnecessary for him to make any reply, and there was no good reason to exclude it; that all *250that was necessary to be done on the part of the United States was to prove the charges to be true, and the book called “The Prospect Before Us” was good evidence to support it.

Mr. Nelson.—Although the paper is long and complicated, the testimony is not so. The testimony, as I stated to you before, is concise, plain, and correct. If there be a man who, now that he has heard that testimony, entertains a doubt whether this libel was published by the traverser, it will be useless for me to address him; if there be a man who doubts on that point, his mind must be imperviable to the traits of truth; his mind must be panoplied o’er with doubt, skepticism and prejudice. If no doubt remain on this point, the question first in order to be examined is decided: whether there be room for doubt, a summary review of the testimony will ascertain. Can there be a doubt —when all the witnesses have concurred in establishing this one point—that James Thompson Callender corrected the proof-sheets? Can there be a doubt, when those who sold the copies of the book have all said that they sold them for his benefit, and that he received the money? When it has been proved that he received the money from one purchaser himself, and that he paid for printing part of it—that part of the manuscript is in his own hand-writing—can there be any doubt?—And when, in addition to this, one witness declares that he knew him to be a joint publisher with himself, and another witness declared, that he explained the meaning of a certain term, supposed to be ambiguous in its application, is it possible to entertain any doubt? Thus stands the evidence as to the publication. It will be proper for me, gentlemen of the jury, to state to you what is a publication in point of law, as to writing or printing: that the direct or indirect circulation or emission of a libel, is a publication thereof, in law and in fact, has never been questioned in a court of law. If it appears to you that James Thompson Callender did not directly or indirectly emit or circulate this paper, then is he not the publisher thereof; if he be not the publisher directly nor indirectly thereof, then ought he to be acquitted: and if he be the publisher, and the intention thereof be not criminal, that is, if the matter therein contained be not false, scandalous and malicious, still ought he to be acquitted; but if he be the publisher, and the matter be libellous, that is, false, scandalous and malicious, the intention must be wicked and criminal, and you must find him guilty. For the questions you are to try, gentlemen of the jury, are: Was this paper published by the traverser? Was the intention criminal? that is, is the matter false,scandalous and malicious? The evidence which you have heard ascertains the first question, and an examination of the paper, or such parts of it as are laid in the indictment, will decide the second question. Whether your hearts are at ease—whether your passions are untouched—whether your feelings are unaffected, now that you have fully heard the charge, you best know. It remains only now for me, gentlemen of the jury, to call upon you, in the name of your country, whose interest you are to defend whilst you protect the rights of the individual. I call upon you in the name of your God, a portion of whose justice you are about to administer, and on your oaths, uninfluenced by favour, partiality, prejudice or affection, to discharge your duty to your God, to your country, and to yourselves.

Mere Mr. Nelson read the first charge in the indictment, and proceeded to comment at great length upon the libellous passages, sentence by sentence. I have told you . he closed by saying, and again repeat, that it is the peculiar privilege of every citizen of this happy country to place confidence in whom he pleases, and at the constitutional periods of making new elections, to withdraw his confidence from a former representative, and place his trust in another: and even expatiate on the virtues of the new candidate; but this does not warrant him to vilify, revile, and defame another individual, who is a candidate. Cannot a good thing be said of one individual, without saying black and damnable things of another? Is it necessary, in order to recommend one man to the presidential office, that you should charge another with bringing on his country war and beggary? The whole forms a perfect chain of malice, falsehood, and slander. Thus have I made, gentlemen of the jury, a calm, un-coloured statement of facts. I have not highly varnished, nor have said anything but what is consistent with truth. What impression the evidence or charge may have made on your minds, whether your feelings be affected, you and each of you know best. It remains only now for me, gentlemen of the jury, to remiud you, that you are not only to-protect the interests of your country, but to defend the rights of that individual; and in the name of God and of your country, I call upon you to discharge your duty to both and to yourselves.

The attorney for the United States having concluded, the counsel for the traverser introduced Colonel John -Taylor (of Carolina county) as a witness, and he was sworn; but at the moment the oath was administered, the judge called on them, and desired to know what they intended to prove by the witness. They answered that they intended to examine Colonel Taylor to prove that he had avowed principles in his presence which justified Mr. Callender in saying that the president was an aristocrat; that he had voted against the sequestration law, and the resolutions concerning the suspension of commercial intercourse with Great Britain, by which he defeated every effort of those who were in favour of those beneficial measures which were well calculated to promote the happiness of their country.

*251The judge demanded a statement in writing of the questions intended to be put to the witness.

Mr. Nicholas remarked, that the traverser was at least entitled to every indulgence which had been shown to the attorney for the United States; that this requisition had not been made of the attorney, when he introduced witnesses on behalf of the United States, nor was it according to the practice of the state courts; that he wished the witness to state all he knew that would apply to the defence of his client; that he did not know what the witness would precisely prove, but that if the court insisted upon it, he would furnish a statement of the questions which he should first propound, but requested . that he might not be considered as confined, in the examination of the witness, to the questions so stated.

CHASE, Circuit justice.—It is right to state the questions intended to be propounded to witnesses, in all cases, and the reason is extremely plain. Juries are only to hear legal evidence, and the court are the only judges of what is or is not legal evidence, to support the issue joined between the parties. To say that you will correct improper evidence, after it shall have been given, is improper, because illegal evidence, once heard, may make an undue impression, and, therefore, ought not to be heard at ail by the jury; and the attorney for the United States had, in opening the cause, stated the purpose for which he introduced the witnesses.

CHA SE, Circuit Justice, having received a statement of the questions meant to be put, 3 and which were propounded by Mr. Nicholas, declared Colonel Taylor’s evidence to be inadmissible. No evidence, said the- judge, is admissible that does not go to justify the whole charge. The charge you mean to justify by this witness, as I understand you, is, that the president is a professed aristocrat, and that he has proved serviceable to the British interest. You must prove both these points, or you prove nothing. Now as you do not attempt to prove the whole of one specific charge, but only a part of it, your evidence cannot be received; this is the law, both in civil and criminal cases; he who justifies, must justify . an entire charge, or else his defence does not amount to a justification in law. You have not proved the truth of any particular charge, though in order to excuse it, you must prove the whole; to prove the truth of a part only, is not proving what is material. The attorney proposed to prove his indictment. He has exhibited his oral and written testimony to prove it.. The traverser excuses himself from the imputed guilt, by averring that part of some of the charges is true. Is this evidence proper when the whole charge is in issue? If it be, the proof of a very trivial part of an important indictment would excuse from the whole; but I pronounce the law to be otherwise, and take the responsibility on myself, and risk my character on it. It may be-said that this will preclude the party from the privilege of his testimony; but this will only be a misrepresentation, it precludes them from no legal benefit. My country has made me a judge, and you must be governed now by my opinion, though I may be mistaken; but.if I am not right, it is an error in judgment, and you can state the proceedings on the record so as to show any error, and I ■shall be the first man to grant you the benefit of a new trial by granting you a writ of error in the supreme court. It is on these grounds that I reject the evidence of the gentleman. The very argument assigned by the young gentleman who spoke last, has convinced my mind that I am right. The offered testimony has no direct and proper application to the issue; it would deceive and mislead the jury; an argumentative justification of a trivial, unimportant part of a libel, would be urged before a jury as a substantial vindication of the whole. You would, by misleading the jury under - such illegal testimony, destroy public treaties and public faith; and nothing would be more uncertain than law, were such an illegal excuse admitted in courts of law.

Mr. Nicholas suggested that it might be proper to prove one part of a specific charge by one witness, and another part by another, and thereby prove the charge.

CHASE, Circuit Justice, in answer, repeat ed some of his former arguments, and added. that the very argument suggested by the young gentleman who spoke last, convinced his mind that it would be improper to admit the testimony now offered to the court; that to admit evidence, which went to an argumentative establishment of the truth of a minute part of the charge by one witness, and another minute part by another witness, would be irregular, and subversive of every principle of law; that it had no relation to the issue; that it was a popular argument, calculated to deceive the people, but very incorrect.

Here GRIFFIN, District Judge, being called upon by CHASE, Circuit Justice, to deliver his opinion on the question before the court, declared that he concurred with his1 brother judge.

CHASE, Circuit Justice, then observed: This is a new doctrine, inculcated in Virginia. You have all along mistaken the law, and press your mistakes on the court. The United States must prove the publication, and the fallacy of it. When these things are done, *252you must prove a justification, and this justification must be entire and complete, as to ■ any one specific charge; a partial justification is inadmissible. I am happy to find that my brother Judge GRIFFIN concurs with me in opinion.

The counsel for the traverser again desired to be heard on the subject.

Mr. Hay spoke thus: The question before the court is, whether this evidence goes to prove the truth of the whole charge? The opinion given by the court I understand to be, that evidence cannot be produced by the traverser to prove the truth of a part of a charge; but if evidence could be adduced to prove the whole, then such evidence would be admissible. One specific charge is twofold; that the president is an aristocrat; and that he proved servicéable to the British interest. The evidence, we suppose, will support this charge; we wish to prove the truth of the whole charge if we can, though I do not know that it is in our power. The evidence, we have reason to believe, goes first to prove that he is an aristocrat, and secondly, that he did prove serviceaDle to the British. interest; if the testimony will in fact prove these two points, whatever may be the opinion of the court, I do not hesitate to say that, in my estimation, it will fully excuse and justify the traverser; if we can prove that the president has avowed aristoeratical sentiments in conversation, and that he did in reality prove faithful and serviceable to the British interest, the traverser must be acquitted of this charge. As to the first part, I .can prove by the words of Mr. Adams, published by himself, in his book called “A De-fence of the American Constitution,” that he thinks a government of three parts, a,king, lords, and commons, the best in the world.. Suppose, in addition to this, It could be proved that a law passed the house of representatives of the United States, to sequester British property; and suppose that one-half the senate of the United States were in fa-vour of it; and that the policy of passing the law was advocated by the best and wisest men in this country, who have the same pretensions to patriotism and virtue that Mr. Adams has, but that its passage was prevented by the casting vote of Mr. Adams as speaker of the senate, would not the traverser be justified as to this charge? Would it not demonstrate that he proved serviceable to the British interests? By the answers to the first and third questions we expect to prove both these points.

Here Mr. Nelson objected to the introduction of such testimony, as being altogether inadmissible; that gentlemen ought to reflect that, if such evidence as this was to be received, any other testimony, however irregular or improper, might also be admitted; and, particularly, that it would be a departure from the universal principle of law, which required the production of the best testimony which the nature of every case admitted, and that the journals and records of congress were the best evidence of what votes had been given on any subject discussed before that body.

CHASE, Circuit Justice, then addressed himself to Mr. Nelson thus: Being very much pressed, by the young gentlemen who defend the traverser, to admit this testimony, I was going to recommend to you to permit those questions to be put to the witness, though they are certainly irregular. 1 wish you could consent that they should be propounded.

Mr. Nelson declared that he did not feel himself at liberty to consent to such a aepur-ture from legal principles.

Mr. Wirt then rose and addressed the jury. —He premised that the situation of the defendant and his counsel was extremely embarrassing; that as Mr. Callender had been presented,- indicted, arrested and tried, during this term, he had not been able to procure the testimony essential to his defence, nor was his counsel prepared to defend him; and he insinuated that the conduct of the court was apparently precipitate, in not postponing the trial until the next term.

CHASE, Circuit Justice, told him he must not reflect on the court.

Mr. Wirt said, that his object was not to reflect on the court, but to apologize to the jury for the weakness of a defence which he was about to make.

After observing that his apology Included the very reflection he dénied, the court told him to proceed in his cause.

Mr. Wirt.—Gentlemen of the jury, I am prevented from explaining to you the causes which have conspired to weaken our defence, and it is no doubt right that I should be prevented, as the court have so decided. Permit me, then, gentlemen, to pass on abruptly to the law, under which we are indicted. You will find that a material part of your inquiry will relate to the powers of a jury over the subject committed to them, whether they have- the right to determine the law, as well as the fact. In Virginia, an act of the assembly has